(RI) State: No cause to charge Portsmouth officers who took guns

[DRZinn]

For one thing a lot of people lost guns.

Try to follow along, Joe. No-one lost anything as a result of the officers having taken the guns, which were already in the possession of the police department and were about to be destroyed.

 

[TheEgg]

They were legally the property of the Police DEPARTMENT/city/municipality, not the employees of said department. Thus, the officers were certainly guilty of theft.

I you like thieves, I guess you can give them a pass.

 

[DRZinn]

No victim, no crime.

Show me a victim.

 

[twency]

There are various local ordinances which prohibit trash-picking for various reasons, such as health and safety, but the broad legal principle as held by the SCOTUS in California v. Greenwood http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/data/us/486/35.html is that trash placed in a publicly accessible location with no reasonable expectation of privacy (i.e. outside the "curtilage of a home") is free for anyone's perusal, and it would seem, taking.

Obviously the facts in the situation being discussed in this thread are not identical to those in Greenwood. Greenwood was about fourth amendment searches, and the "reasonable expectation of privacy" in one's trash, not precisely about the property rights to one's trash. Also, here in the gun-liberation case, the officers had special access to items which were not in a publicly-accessible location.

But the key is that once the items were headed for disposal, they were no longer the same type of property as they would be if simply locked-up in the evidence room. Greenwood implies that homeowners effectively forfeit their property rights to garbage placed for disposal, by discussing without condemnation the taking of trash by others. eg. "It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so." [footnotes and citation omitted]

The officers were disobedient to their employer, but they didn't take another person's or organization's property in the same sense as simply walking off with the office stapler. Hence the difficulty, perhaps impossibility, of demonstrating "larceny" on the part of the officers. Personally, I have trouble blaming them under the circumstances, but I must admit they did wrong by their employer. Even so, it wasn't larceny, just plain disobedience.

Incidentally, if you have any interest in the fourth amendment (and who on this second amendment-oriented board doesn't) Greenwood is excellent reading, as it also references some other key cases on the subject of the "reasonable expectation of privacy." Not many people realize that there's no reasonable expectation of privacy inside a home under a skylight, for instance, but that's the unstated implication of California v. Ciraolo. Food for thought.

-twency

By the way, I agree that this was a victimless "crime", but that doesn't necessarily make it right.

 

[DRZinn]

It's not entirely right, since they violated department policy and/or procedure. The punishment they got seems about right to me.

 

[TheEgg]

Ah, but you forget the facts of the case. Remember this?

That weapon, an Armsport 12-gauge shotgun, had been seized from a drunk driver. When it was later determined that the man was a hunter and that there was no reason to keep his gun, he was told he could retrieve it.

Then it turned out that it was not were it was supposed to be. One of the cops had stolen it. The hunter is the victim in this case.

Thought experiment -- if this is no big deal, why did the officers just not walk up to the cheif and say "Hey, you know those guns that are scheduled for destruction? I like the looks of a couple of them, I am going to take them."

We know why:

"None of this makes me proud. It is a black mark and a sad day for this department," the chief said. But, he added, "It is time to move on."(I hate this phrase!)

Since this did not happen, and the cops took them on the sly, you and I both know that the COPS involved knew it was wrong. But being cops, they got away without criminal charges.

Another thought experiment for you: if in the process of moving these weapons around they were stored in a box that said "to be destroyed" -- the box was to be moved from one building to another, and was accidently left for a few minutes on the sidewalk -- I, walking by, saw the box, read the sign and decided to take several of the guns for myself -- then, later I was found to have the guns.

Do you think that the attorney general would give me a pass when I explained that "Well I could see that they were to be destroyed, so no harm no foul, right?"

I don't think so, do you? I am absolutely convinced that I would have been criminally prosecuted for theft (most likely a felony charge.) They would have stated that I had stolen city property. And they would have been RIGHT!

I think everything in the article, the comments of the Chief, the comments of the AG, everything, makes very clear that this conduct was not acceptable - and in my opinion the only reason that criminal charges were not brought was because the Blue Wall protected these men.

 

[Highland Ranger]

Show me a victim.

Victim is the state. They had legal (?) ownership of the guns to do with as they saw fit (in this case destroy).

Come on guys; we have some rabid anti-cop members and some rabid pro-cop members.

Many of us fall somewhere in between - happy there are people who will do such a dirty job for so little compensation but unhappy that the liberal left wants these people to have some super-citizen status which diminishes us all.

BUT, call it straight. Nice that the guy owned up to it, but taking something that's not yours is stealing. Everyone's Momma taught them that . . . .

The lesson? I guess cops are above the law.

Someone call Steven Segal.

 

[Art Eatman]

It seems to me that the fundamental immorality of this whole deal is the law itself. Why should ANY legal item of value be subject to destruction merely because of who possesses it?

Those who passed the pertinent law(s) operated on the basis of foolish emotions, aside from any inherent problems with economics, taxation, and police department budgets. They failed to have any rational answer that is basic to all law: "What public interest is served?"

Art

 

[Cellar Dweller]

To me, something is wrong only if someone's rights are violated.

Thus, since the guns would only be destroyed, they were trash.

No-one lost anythng.

By that logic, it is not a crime for the foundry or its employees to keep items of value instead of disposing of them (and I need to get a job at LeBaron, new toys for FREE, woohoo!!!).

 

[twency]

By that logic, it is not a crime for the foundry or its employees to keep items of value instead of disposing of them

I'm not sure it would be a crime. Perhaps just a contract violation. Keep in mind that the Supreme Court of the United States has recognized the existence of the hypothetical "trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so." (See California v. Greenwood, quoted in my previous message in this thread.) There is no implied condemnation here. Sure, that doesn't make it law, it's just dicta, but it reinforces the idea that if something is conveyed to another person for disposal, and the recipient disposes of it in an unexpected manner, that's not necessarily a crime in and of itself. Maybe it's a contract violation, since the items were not disposed of as specified in a contract. Possibly fraud, because the foundry represented it was doing (a), and actually did (b), but took money as if it had done (a). However, if the employee does it without knowledge of his employer, maybe not even fraud applies. It's definitely not a foregone conclusion that a crime has occurred.

As for this:

Ah, but you forget the facts of the case
...
The hunter is the victim in this case.

The hunter was wronged, to be sure, but not by the officers who saved the items from destruction. In fact, it was the unintended effect of the action by the officer of saving the gun, which made it possible for the hunter to be made whole. (As well as the intended effect of his admission that the gun remained under his control.) If the officer hadn't rescued the shotgun from destruction, and later admitted that fact when the chief believed otherwise, the police department would have been unable to return it. It's not the officer's fault it was improperly scheduled for destruction. I don't think either DocZinn or I are the ones forgetting the facts of the case.

Believing the gun must inadvertently have been destroyed with the nearly 100 others that had just been "purged" from the evidence room — some dating back 20 years, the chief was about to tell the gun owner that the gun had been destroyed.

_________________
-twency

 

[twency]

Another thought experiment for you: if in the process of moving these weapons around they were stored in a box that said "to be destroyed" -- the box was to be moved from one building to another, and was accidently left for a few minutes on the sidewalk -- I, walking by, saw the box, read the sign and decided to take several of the guns for myself -- then, later I was found to have the guns.

Do you think that the attorney general would give me a pass when I explained that "Well I could see that they were to be destroyed, so no harm no foul, right?"

I don't think so, do you? I am absolutely convinced that I would have been criminally prosecuted for theft (most likely a felony charge.) They would have stated that I had stolen city property. And they would have been RIGHT!

I think everything in the article, the comments of the Chief, the comments of the AG, everything, makes very clear that this conduct was not acceptable - and in my opinion the only reason that criminal charges were not brought was because the Blue Wall protected these men.

Read the Supreme Court case I referenced above. It's quite possible you would be well within your rights to walk off with those items, if you were not otherwise prohibited from possessing them (say, because of laws banning "evil" features, or the like).

In the instance you described, I think a reasonable person might assume that a box of items marked "to be destroyed," placed unattended on the sidewalk, might very well be intended for disposal. Clearly it's been placed in a public area without any attempt to protect it from, as the Supreme Court might say, "animals, children, scavengers, snoops, and other members of the public." Now, it's less common (at least in my neighborhood) for boxes of guns to be left by the curb than for bags of trash to be left by the curb, but people do leave stuff out in our neighborhood with signs that say things like "Free to a good home" and "Free - works good." Even without the sign, people just leave stuff out by the curb to see if anyone will pick it up. Sometimes this is associated with a neighborhood bulk-item trash pickup, but it also happens at other times.

The flaw that I see with my argument, and I admit it's significant, is that guns, being considered to be a special class of evil item, aren't generally given away in this manner. But I'm not sure why that couldn't be, given that I've seen old, beat-up, but supposedly working circular saws being offered for unrestricted, unsupervised taking. Potentially as dangerous, or more so, than a 40-year-old rusted .410 shotgun.

For what it's worth, I don't think the officers were right to do what they did, but it bugs me when people conflate "That's not right" with "That's illegal." I don't think certain acts are right, but they are legal. I won't offer specifics, lest I lead this thread down an unrelated and unprofitable tangent.
___________________
-twency

 

[secamp32]

I'm in charge of IT at my company

and we throw old computer in the trash. Once its in the trash I could care less what happens to it. If an employee wants one they are welcome to it. Do you think that if something valuable is put in the trash the trash collectors aren't going to take it home? So whats the difference. Garbage is garbage.

FYI I think the guns should have been auctioned off to the public rather than trashed.

 

[TheEgg]

twency, I agree that I might be able to "beat the rap" using the legal reasoning that you state(sounds good, anyway). However, I still believe that I would be prosecuted under the circumstance I outlined. And that the cops are not being prosecuted because they are cops, not because of a careful look at the law by the AG, other than as a way to find and excuse to not do something they didn't want to in the first place.

But of course this is just my opinion, I can't read the AG's mind, but it sure smells bad to me.

 

[DRZinn]

The hunter is the victim in this case.

The hunter was the victim when the wepaon was confiscated. If the cops had npot taken it, it would have been destroyed. The hunter lost nothing by them taking the weapons.

Do you think that the attorney general would give me a pass when I explained that "Well I could see that they were to be destroyed, so no harm no foul, right?"

As always, I'm not arguing the law, I'm arguing what is or is not right. Telling me I would be prosecuted for taking guns in a box on the street is like telling me I would prosecuted for carrying concealed in DC: that wouldn't mean I was wrong.

By that logic, it is not a crime for the foundry or its employees to keep items of value instead of disposing of them

Why should it be a crime? Firing offense, sure. Prosecutable in civil court, perhaps, depending on the employment contract. But show me a victim.

 

[TheEgg]

The hunter was the victim when the wepaon was confiscated. If the cops had npot taken it, it would have been destroyed. The hunter lost nothing by them taking the weapons.

Sophistry of the worst sort. You can do better (and have, in this thread!).

The (temporary) confiscation of the weapon was legal and proper, as the hunter was drunk. But, no other reason was found to keep the weapon further, thus it was to be returned to him. It could not be, but only because some sticky fingered cops lifted it. Playing in your yard, legal or not, that was certainly not 'right'. And the article said nothing about the weapon being 'saved' because the cops took it - you invented that - the final disposition of that particular weapon had not been determined. If it HAD been destroyed, that destruction would have been premature and an error.

 

[DRZinn]

legal or not, that was certainly not 'right'.

We have two options here:

A: The cops leave the weapons alone and they are destroyed. The hunter's weapon, taken from him, is also destroyed. He loses his rifle.

B: The cops take some of the weapons, and the rest are destroyed. The hunter's rifle, taken from him, is in the hands of the cop. He loses his rifle.

The end result is THE SAME either way. And the hunter has his rifle back, which he might not have if the cops had not taken it.

It could not be, but only because some sticky fingered cops lifted it.

It could not be, because it had been sent to the foundry, not because of the officers.

It is not clear from the original story if the rifle in question would already have been destroyed or not when the owner showed up to retrieve it, but if it would have been, then the officers' having taken it actually saved it for him. If not, then he still did not lose anything, since they volunteered the fact that they had taken some rifles.

In fgact, had they kept quiet they could probably have kept the rifle, and the man would be told that it had been destroyed. The fact that they did not do this illustrates their integrity.

No victim. Hence, no crime.

the article said nothing about the weapon being 'saved' because the cops took it - you invented that -

No, I didn't. In the original context of a bunch of weapons which would shortly be destroyed, the cops were saving weapons from being melted down. Once it was determined that that rifle in particular should be returned to its owner, the context changed. But it is still possible that the rifle would have already been destroyed had the cops not taken it.

Show me a victim.

 

[Powderman]

Oh, for heaven's sake....

it's NOT a victim issue, and not REALLY a property issue..

It's an integrity issue!

You cannot steal and be a cop. You cannot lie and be a cop. You can not conceal and be a cop.

If you do those things, then you WILL be caught. And when you do, the first people to hang you out to dry will be other cops.

For all of this who are stuck on the "rightness" of this, consider:

If a guy will take stuff that does not belong to him, he'll do other stuff too.

Like lie his way out of a tough spot on a witness stand.
Like lie on a traffic citation to cover an illegal stop.
Like lie on an arrest report to cover an illegal seizure or improper search.

And, since it's OK to take a gun--what the heck, they were going to be melted--where is the line drawn?

Let's take unclaimed property, too.

How about bicycles? Perhaps that garden hose that was recovered might be just the ticket.

And, how about all of that UNCLAIMED CASH, just sitting around from that last arrest of a drug dealer? Hey--he's sure not going to get it back.

Get a clue, folks. Some of you are THE SAME ONES who crucify cops here, verbally, when they don't fit into your idea of what is right with the world.

And now, you sit there and advocate--AND ENCOURAGE--the commission of a crime; the theft of firearms, which in this case signifies the complete and utter lack of integrity of the officers involved!

Get a grip, people! YOU DON'T NEED THIEVES IN UNIFORM!!!

 

[Highland Ranger]

Can't believe this is still going on and can't believe that there are people defending what these cops did.

Let me put another spin on it. Here in the PRNJ it takes at least an hour to buy a gun with all the paperwork you have to fill out.

What paperwork did these guys fill out?

Again, no one is above the law and our LEO's should be held to an even higher standard of integrity.

These guys should have been fired at the very least and prosecuted would have been nice.

 

[DRZinn]

If a guy will take stuff that does not belong to him, he'll do other stuff too.

I don't care what else "a guy will do." An act is wrong or it isn't, and what it does or does not prove about one's character does not in any way effect the rightness or wrongness of the action.

How about bicycles? Perhaps that garden hose that was recovered might be just the ticket.

And, how about all of that UNCLAIMED CASH, just sitting around from that last arrest of a drug dealer? Hey--he's sure not going to get it back.

Nice straw man. The weapons were not merely unclaimed, they were on their way to be destroyed. A bicycle will be sold or donated. If guns were donated to poor inner-city residents we wouldn't be arguing about this. By the same token, if the cash were shortly to be destroyed, I'd be saying the same things I am about the guns.

Show me a victim.

can't believe that there are people defending what these cops did.

I'm not defending it, just saying it shouldn't be a crime. I think homosexuality is wrong, too, but it's none of my business. Then there are my earlier posts:

It's not entirely right, since they violated department policy and/or procedure.

and

Firing offense, sure. Prosecutable in civil court, perhaps, depending on the employment contract.

Doesn't look like much of a defense to me.

Show me a victim.

Here in the PRNJ it takes at least an hour to buy a gun with all the paperwork you have to fill out.

What paperwork did these guys fill out?

So does that mean the burden on them is too light, or on us too heavy?

SHOW ME A VICTIM.

 

[TheEgg]

Show me a victim.

Seveal of us have, over and over. You simply refuse to accept it.

Fair enough, but I think you are being deliberately obtuse here. "There are none so blind as those who WILL NOT see."

But, I know of no other way to try to make you see. I am out of ideas. Maybe someone else can do better.

TaTa.

 

[Al Norris]

My Sheriff in the PDRK made the politically correct decision to destroy weapons in the evidence locker rather than sell them to FFL holders for much needed funds and ammunition.

In Twin Falls last year, they did this. There was a huge howl put out by citizens and FFL's. This year, they auctioned them off to the FFL holders. People got some new used guns to buy and the TFPD got some extra cash.

 

[twency]

Sophistry of the worst sort. You can do better (and have, in this thread!).

The (temporary) confiscation of the weapon was legal and proper, as the hunter was drunk. But, no other reason was found to keep the weapon further, thus it was to be returned to him. It could not be, but only because some sticky fingered cops lifted it. Playing in your yard, legal or not, that was certainly not 'right'. And the article said nothing about the weapon being 'saved' because the cops took it - you invented that - the final disposition of that particular weapon had not been determined. If it HAD been destroyed, that destruction would have been premature and an error.

I'm not sure to whom the charge of "sophistry" is being applied, but as I'm on record arguing that the actions of the officers kept the guns from destruction, I'm going to respond to this. The article very clearly indicates that the weapon was "saved" because the cops took it. The "temporary" confiscation, as you termed it, would have turned into a permanent one except for the actions of Det. Hoetzel. I quoted one of the passages which shows this two days ago. To wit:

Believing the gun must inadvertently have been destroyed with the nearly 100 others that had just been "purged" from the evidence room — some dating back 20 years, the chief was about to tell the gun owner that the gun had been destroyed.

It was the actions of the "sticky fingered cop" which made it possible for the gun to be returned:

But before he could do so, the chief said that Det. Hoetzel came in and admitted that he had seen the gun among the others about to be driven off to the foundry and had asked for permission to take it.

Please note that I am not saying that these officers were right to do what they did. However, based on the article as written, which to my knowledge is the only documentation we have of this incident, the officers did not prevent the return of improperly taken property. In fact, they facilitated it, albeit by means which may not have been appropriate. The gun had been placed "among the others about to be driven off to the foundry." The following investigation confirmed this:

During the subsequent investigation, led by Deputy Chief Lance Hebert, the three officers came forward and revealed that a total of five guns had been taken from boxes of guns that were about to be shipped off for melting. The guns were in open boxes inside the still-open trunk of a patrol car when they were taken.

The guns were about to be shipped off for melting when taken. They were saved from destruction by the actions of the officers. The police chief believed they had been melted-down, but was informed otherwise by the officer who had the hunter's shotgun. The officer saved the hunter's shotgun from destruction. It's quite clear.
___________________
-twency

By the way:

Main Entry: soph·ist·ry
Pronunciation: 'sä-f&-strE
Function: noun
1 : subtly deceptive reasoning or argumentation

You are accusing someone of being subtly deceptive in "the worst sort" of way. Please be more careful with your accusations.

 

[twency]

And now, you sit there and advocate--AND ENCOURAGE--the commission of a crime; the theft of firearms, which in this case signifies the complete and utter lack of integrity of the officers involved

As I've previously indicated, I'm unconvinced that a crime occurred here. Please show me otherwise. I've explained my reasons, in detail, for believing so, in my prior discussion of the Supreme Court case California v. Greenwood.

I am not convinced that the officers where right to do what they did. Certainly, as a general rule, I believe all employees have a duty to obey all lawful and moral instructions given to them by their employer. But that's a non-criminal question of workplace conduct. It's a moral issue, not a legal one. The officers showed a lack of respect for those in authority over them. They also were "trash-pickers," if you want apply a vulgar insult to them. But they are not necessarily lawbreakers.

-twency

 

[twency]

I can't believe this is still going on and can't believe that there are people defending what these cops did.

Let me put another spin on it. Here in the PRNJ it takes at least an hour to buy a gun with all the paperwork you have to fill out.

What paperwork did these guys fill out?

Again, no one is above the law and our LEO's should be held to an even higher standard of integrity.

These guys should have been fired at the very least and prosecuted would have been nice.

First, these guys aren't in the PRNJ. Good for them.

Second, why should any paperwork have to be filled out to transfer a longarm, or any gun for that matter? Here in the slightly-less-socialist-than-the-PRNJ Commonwealth of Pennsylvania, as far as I know, I wasn't required to fill out any paperwork when my dad gave me my grandfather's Winchester Model 94. Why should I have to?

Third, "no one is above the law, and our LEO should be held to an even higher standard of integrity." Agreed.

Fourth, maybe these guys should be fired because they didn't do what their boss told them to do. What do you want to prosecute them for? Trash-picking?

Larceny, the chief said, is the taking of property belonging to another with the intent to permanently deprive the person of that property.

Who was being permanently deprived of their property by the taking of guns headed for the foundry to be turned into slag? Did they deprive the foundry of 5 cents of iron?

I'll go on record as saying that it would have been better if the weapons in question had been auctioned off to benefit the police force or community. It also would have been a trivial matter, in that case, to return the hunter's shotgun. Refund the buyer, and give the shotgun back to the hunter. But in their infinite wisdom, the powers that be decided to take valuable property, which was perfectly legal for private individuals to own, and destroy it in a feel-good measure to make some gun-haters happy.

(Imagine if they'd confiscated $100,000 cash 20 years earlier, and decided to purge their evidence room of it. Do you suppose they would have burned it?)

____________
-twency

 

[mike45]

I hate it when something like this happens. Everyone jumps on the "All cops are corrupt" bandwagon with some pretty inane statements. Kind of reminds me when someone uses a gun in a crime and the liberals say things like "we should ban ALL private gun ownership".

This theft from a property room with no charges is the exception, not the rule. Most property rooms are run like Fort Knox. Here in Ohio there are laws about how firearms turned over to the Department must be disposed of and just handing them over to a police officer is not one of those ways. Telling the captain in charge that you're going to grab a gun marked for destruction is like telling him you're going to take his 13 year old daughter out drinking at a strip bar... not just "no" but "hell no".

I hate to bust the bubble of all you cop haters out there but police officers are held to a higher standard on most police departments.


mike